Meeting the standard of care

[Jim6e]

I would appreciate comments regarding the following scenario. This scenario is based upon real events.

*****

During a six to seven-year period, Engineer A submitted two flood map revision requests to localities and the Federal Emergency Management Agency (FEMA) for review and approval (2014 – 2021 timeframe). The requests were motivated by private clients of the engineer. The second request overlapped the location of the first request, asking to remap a smaller zone.

During review, the authorities having jurisdiction (AHJs) asked Engineer A in writing to justify setting aside the method used to calibrate the existing flood maps produced by FEMA in 2005. Over the two map revision requests, the AHJs requested justification four times: "Please provide justification for setting aside the existing method." Engineer A never provided documented written justification. Does this represent a failure to meet the standard of care expected of professional engineers?

As additional information, consider that an independent engineering firm (Engineer B) has recently drafted a set of revised flood maps for the same reach of river, directly on behalf of FEMA. They have proposed base flood elevations for the river that are largely in line with those proposed by Engineer A. However, review of their work appears to show that Engineer B used an incorrect calibration method to validate their maps. Specifically, they appear to have made the same underlying mistake as Engineer A.

Recently, during an official public comment and appeal window for the work of Engineer B, I submitted a technical appeal. The technical appeal asserted to FEMA that the method of model calibration used in 2005 was correct and that the alternative method employed by Engineer B was incorrect and unjustified. FEMA has reviewed the appeal and certified it as valid. Engineer B is now redoing their calculations. While it is not yet known how recalculation will change the expected base flood elevation of the river, FEMA’s acceptance of the technical appeal validates the assertion that Engineer A and Engineer B used the wrong calibration method.

Thus, is there a contrast to be drawn between the professional actions of Engineer A and Engineer B vis-a-vis standard of care? Engineer B was notified that they had not justified using an alternative calibration method. Upon notification, they acknowledged their error, and they are now redoing their work. In contrast, Engineer A was notified four times that he had not justified using an alternative calibration method. Yet, he persisted in using that alternative method, with no documented written justification ever provided.

In this write-up I emphasize that Engineer A never provided written documented justification for his work. Ultimately, his two map requests were approved by the AHJs. Thus, he may have provided verbal justification to them, but there is no record of such justification. Alternatively, the AHJs may have approved his requests in error, even though he never provided the justification they had requested earlier in the process.

Does the possible failure of the AHJs to require written documented justification of alternative calibration method relieve Engineer A of his professional responsibility to meet the “standard of care” in engineering?

 

[JStephen]

Based on your write-up, it sounds like you simply don't have enough information to determine if he did or didn't meet the standard of care, since you don't really know what was furnished (verbally or otherwise) or why a result was approved after being questioned.

 

[Heaviside1925]

Hello again OP,
So, standard of care. Unless statutorily defined, it would be considered the level at which an ordinary, prudent professional with the same training and experience in good standing in a same or similar community would practice under the same or similar circumstances. Since engineer B used the same calibration, Engineer A passes the test for standard of care with flying colors.

Instead of trying to sterilize this with legal definition, can you add some context? You already said this is in VA, so is the locality a city, township, county? When you say submitted to the locality, is this a general council or board or is this a subcommittee? When you say, AHJs (multiple) Can you state the authorities involved and the applicable jurisdictions?

I am asking these questions because it depends on what everyone's statutory requirements are for the role or office they are holding. For instance, a city council or board may only be required for approval to meet a statutory public comment period and are not involved with any sort of technical review at all.

I find it odd that by your description an AHJ / multiple AHJs required a condition multiple times and are ignored, yet it didn't seem to be relevant to the eventual approval. So, either there was no authority or no jurisdiction or both, subject to the request. Are what you are considering AHJs are truly AHJs?

 

[Jim6e]

Heaviside1925
The flood map revision request encompassed waterways in one Virginia county and one Virginia independent city. Those are the two localities to which I refer. Both of those localities employ officially-designated floodplain administrators (spelled out in their codes of ordinances). In one case, the floodplain administrator is the director of neighborhood services (a non-engineer). In the second case, the floodplain administrator is the county engineer. While FEMA is ultimately responsible for our nation's flood maps, map revision requests that originate in the communities must be requested by the local government: "All requests for changes to effective maps... must be made in writing by the Chief Executive Officer of the community..." Federal code (44 CFR 65.6(f)).

Both of the localities involved in this particular case participate in the National Flood Insurance Program. To participate in that program, each locality has agreed to the following: "To qualify for flood insurance availability a community shall apply for the entire area within its jurisdiction, and shall submit: A commitment to recognize and duly evaluate flood, mudslide (i.e., mudflow) and/or flood-related erosion hazards in all official actions in the areas having special flood, mudslide (i.e., mudflow) and/or flood-related erosion hazards." CFR Title 44, Chapter I, Subchapter B, Part 59.22, (a)(8)

You say that Engineer A "passes... with flying color," but does he? After the first and second written notifications from FEMA requesting justification, Engineer A resubmitted unmodified map revision requests. He did not respond to FEMA's explicit request for justification. His original submission had no justification. His second and third submissions also had no justification. That is crystal clear from the written record. What is not clear is the final approval of each flood map request. In those two instances either a) justification and approval were handled verbally, or b) FEMA's mapping partner approved the revision request without proper justification.

Best regards.

 

[Jim6e]

Heaviside1925
Let's explore a few details of the two applications for map revision.

Original application A: No justification provided by Engineer A

Following FEMA's first written request for justification: No justification provided by Engineer A. He is unresponsive to a formal request.

Following FEMA's second written request for justification: No justification provided by Engineer A. He is unresponsive to a formal request.

Following FEMA's third written request for justification: FEMA approves during a phone call. No documentation for how the justification issue was resolved.

Original application B: No justification provided by Engineer A

Following written request for justification from a locality: No justification provided by Engineer A in written response to the locality. He is unresponsive to a formal request. Subsequently, FEMA approves. No documentation for how the justification issue was resolved.


From my perspective, I see Engineer A committed to obtaining the answer that his clients want. He is acting as a "hired gun." Engineer A repeatedly ignores requests for proper documentation from officials and waits until he gets the answer that he wants.

 

[Heaviside1925]

OP,
All I am reading communicates you have issue with FEMA and their subsequent approval and not engineer A. Maybe Engineer A ignored the request for justification to force FEMA to require the calibration factor to be used, then engineer A has justification to go back and redo their work. FEMA decided not to in these two cases and instead approved.
Engineer B may very well had planned to take the same approach as engineer A but FEMA did require them to use a different calibration factor and so engineer B is now redoing their calculations.
Comparing these actions to test a standard of care is a false argument because each engineer was presented with a different situation.
Forcing an AHJ to tell you how they want things done is not an uncommon practice because as the saying goes "you can't fight city hall" and instead of a back and forth with the AHJ it could be argued a possible route may be to ignore them until they communicate how they want it done. In other word, "they either approve it, or they don't and will tell me how they want it done".

 

[Jim6e]

Heaviside1925
Thanks as always for the thoughtful reply.

You state, "each engineer was presented with a different situation." Let me push back on that thought vis-a-vis the original standard of care question.

What was the justification that was missing from the work of Engineer A and Engineer B? Both failed to compare their model against available high water mark data on the river in question and confirm that their model predictions reasonably matched the actual behavior of the river.

Data was available for model evaluation. It should have been used. Engineer A repeatedly set that data aside without explanation despite being made aware of the data's existence. In contrast, when Engineer B was made aware of the existence of the data they undertook reevaluation of their data. No second or third request was required and ignored.

Engineer A repeatedly set aside a data set without justification. The issue here goes beyond simply a FEMA process. In science and engineering it is broadly recognized that cherry picking data is unethical. That is the standard of care in our field. You can't cherry pick data. If you want to set data aside, you must explain why you believe some or all of the data is invalid. Engineer A was asked to provide such justification, and he did not, repeatedly.

He did not respect our field's standard of care vis-a-vis data usage. He did not respect written and oral comments provided to him by localities and FEMA reviewers. He appears to have either ignored or been unaware of FEMA's published standard which states, "Hydrologic and hydraulic analyses must be calibrated using data from well-documented flood events, if available." Note, the regulation says "must."

I have reviewed internal communication of one of the localities. In one instance, when Engineer A resubmitted his work, an engineer working for the locality observed that the submission was unchanged. The request for justification was ignored. Does that really represent the standard of care in our field - to ignore and reject feedback and requests without explanation?

I agree that FEMA erred, but do their errors absolve Engineer A of all responsibility to meet the standard of care in our field?

Best regards.

 

[SWComposites]

This situation is nothing new. NO ONE wants their property to be declared to be a flood zone. FEMA has been blatantly ignoring their published standard which states, "Hydrologic and hydraulic analyses must be calibrated using data from well-documented flood events, if available." for decades. And if FEMA tries to properly draw flood maps, the property owners and local governments will be up in arms and filing law suits to stop it. For instance, in places the historical Mississippi river flood plain was 100+ miles wide; are the FEMA flood zones this wide? hell no, not even close. And yet those areas flood every so often.

Your Engineer A is probably unethical at some level, but its a political thing thats been going on for a long time across the country, and the ultimate responsibility lies with local government and FEMA. And they approved the potentially incorrect flood maps, after asking for more info that they did not get.

Further, “fixing” the problem may not be in the best interests of the property owners or local government. So before you go further with this holy crusade, you should discuss it with those people who would be affected.

 

[Jim6e]

SWComposites
Thanks for the input.

I agree that there are really tough political items here. Still, should we as a profession go along with this manner of mapping floods in our country? We all know that our paramount duty as a field is to protect the health, welfare, and safety of the public.

In terms of notifying local interests, I have made the two localities aware of my technical appeal to FEMA and FEMA's response to me. I have alerted them to the fact that corrections may be coming to the local floodplain at some time in the future.

At this point, I do not believe it is appropriate for me to alert parties who may be more directly affected. I don't want to create stress for private citizens like the low-income homeowners who could be directly impacted by a significant correction to the flood zone around their homes. I want to see the result of Engineer B's recalculations. Do they lead to a minimal change of predicted flood levels, or do they make several feet of difference in their predictions? Time will tell.

Best regards.

 

[Heaviside1925]

OP,
I will again go back to both engineers applied the same factors initially, same standard of care. Your secondary argument is making the assumption engineer B would have decided to go back and redo things if FEMA had not required it. Maybe engineer B would have gone back and redone things without FEMA's request, but nothing you have pointed to indicates this as a valid claim other than you. Maybe talk to engineer B or local engineer C and just ask why and leave engineer A out of it.

A cautionary note. Everything you are mentioning are points of law and are arguments for a court to decide. These are not accusations you can levy nor are they relevant to anything the localities and AHJs should typically consider. Can you make a technical complaint? yes, and you did. As far as legal issues, this is for attorney's representing the county, city, state and any harmed parties and relevant courts, not you. Your previous post related to this, had a recommendation from another poster that you consult an attorney, which I would strongly reiterate. I am only saying this because the way you appear to be approaching things (from this and your previous post) will likely cause people to dismiss or ignore you at a minimum, but I am sure VA also has libelous and harassment statutes that you should be sure to steer far away from. That said, you could just be venting anonymously online, which I can appreciate.

I am not saying you are wrong to be bothered by these issues, but you are neither a flood map engineer expert, nor an attorney. Your only complaint as a professional engineer has been made (from your previous post) outside of that, you are just an average joe. I think the last thing you want are your local officials to think to themselves "Here comes that correction factor this, justification that, guy again" or " Boy, this guy has vendetta, I feel sorry for engineer A". Perception can be a much stronger attribute than actual fact sometimes.

 

[LionelHutz]

I doubt you can argue a standard of care issue unless you have documents proving the engineer purposely submitted his plans with omissions or errors because he had a financial interest in the properties. The fact another engineer did the same work and came to largely the same conclusions strongly suggests this wasn't the case.

It seems you should be following the process steps with appropriate input and otherwise let the chips fall as they may. The legal system will sort out any grievances that arise from the maps being updated.